Robotic Vision Systems Inc – ‘8-K’ for 2/23/04 – EX-9

On:  Monday, 2/23/04, at 4:58pm ET   ·   For:  2/23/04   ·   Accession #:  1013816-4-163   ·   File #:  0-08623

in

this entire Filing. an “Entity” Search.

Show

Documents searched

and

each “hit”. the 1st “hit”.

↓↑Hints

Current Report   —   Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                         3     10K 
 2: EX-9        Exh. 10.1 Subscription Agreement                       5     26K 
 3: EX-10       Exh. 10.2 Warrant                                      8     41K 
 4: EX-99       Exh. 99.1 Press Release                                2±     9K 

EX-9   —   Exh. 10.1 Subscription Agreement

EX-9
1st Page of 5
TOC
↑Top
Previous
Next
↓Bottom
Just 1st
 
                                                                    Exhibit 10.1

SUBSCRIPTION AGREEMENT

     SUBSCRIPTION  AGREEMENT (the  "Agreement"),  dated as of February 20, 2004,
between Robotic Vision Systems,  Inc., a Delaware  corporation  (the "Company"),
and  SF  Capital   Partners  Ltd.,  a  British   Virgin  Islands   company  (the
"Subscriber").                                                                  

     The  Company  is  offering  for sale to the  Subscriber,  on the  terms and
conditions set forth below, 666,667 shares (the "Shares") of the common stock of
the Company (the "Common  Stock") at a price of $3.00 per share, or an aggregate
price of  $2,000,000  (the  "Offering  Price"),  and a  six-month  warrant  (the
"Warrant")  to acquire  up to an  additional  645,161  shares  (the  "Additional
Shares") of Common Stock at a price of $3.10 per share or an aggregate  price of
$2,000,000.                                                                     

     NOW THEREFORE,  in  consideration  of the premises and the mutual covenants
hereinafter set forth, the parties hereby agree as follows:                     

I. SUBSCRIPTION FOR SHARES; REPRESENTATIONS BY SUBSCRIBER                       

     1.1  Subject  to the  terms  and  conditions  hereinafter  set  forth,  the
Subscriber  hereby  subscribes for and agrees to purchase from the Company,  and
the Company agrees to issue and sell to the  Subscriber,  at the Offering Price,
the Shares and the  Warrant.  The closing of the  purchase  of the Shares  shall
occur on the date  hereof,  or such  later  date as  shall be  agreed  to by the
parties (the "Closing Date").  On the Closing Date, the Subscriber shall pay the
Offering Price by wire transfer to the Company in accordance  with  instructions
to be given by the Company to the  Subscriber on or before the Closing Date, and
the Company  shall cause its counsel to deliver a legal  opinion  letter in form
and  substance  reasonably  acceptable  to  the  Subscriber.   The  Warrant  (in
substantially the form attached hereto as Exhibit A) and certificates evidencing
the Shares will be issued to the Subscriber as soon as practicable after receipt
and collection by the Company of payment for the Shares.                        

     1.2 The  Subscriber  recognizes  that the  purchase  of the  Shares and the
Warrant  entails  elements  of risk in  that  (i) it may not be able to  readily
liquidate its investment;  (ii) transferability is restricted;  and (iii) in the
event of a disposition, it could sustain the loss of its entire investment.     

     1.3 The Subscriber acknowledges that it is an "Accredited Investor" as such
term is defined in  Regulation D under the  Securities  Act of 1933,  as amended
(the "Act"),  that it has prior  investment  experience  such that it is able to
evaluate the merits and risks of an  investment  in the Company,  or that it has
employed the services of an investment advisor to read the Disclosure  Documents
(as  hereinafter  defined)  and to  evaluate  the  merits  and  risks of such an
investment on its behalf;  that it  recognizes  the  speculative  nature of this
investment; and that it is able to bear the economic risk it hereby assumes. The
Company's (i) Annual Report on Form 10-K for the year ended  September 30, 2003,
as filed with the U.S. Securities and Exchange Commission ("SEC"),  and (ii) any
other  reports  filed by the Company  with the SEC  pursuant  to the  Securities
Exchange  Act of 1934 between  January 13, 2004 and the date of this  Agreement,
are  collectively  referred to as the  "Disclosure  Documents."  The  Subscriber
acknowledges  that  it  or  its  representative(s)   have  read  the  Disclosure
Documents.  The Subscriber also acknowledges  that it and its  representative(s)
have been afforded the  opportunity  to make,  and has made, all                

EX-9
2nd Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 2nd
inquiries as it and its  representatives  deemed appropriate with respect to the
Company's affairs and prospects.                                                

     1.4 The  Subscriber  hereby  acknowledges  that the  Offering  has not been
reviewed by the SEC because of the Company's  representation that it is intended
to be a non-public  offering pursuant to Section 4(2) of the Act. The Subscriber
represents  that  the  Shares  are  being  purchased  for its own  account,  for
investment and not for public distribution.  The Subscriber understands that the
Shares,  upon their  issuance,  will not be registered  under the Act and may be
required to be held indefinitely  unless they are subsequently  registered under
the Act pursuant to Article III hereof,  or an exemption from such  registration
is available.                                                                   

     1.5 The  Subscriber  acknowledges  that the  certificate  representing  the
Shares shall bear a legend in substantially the following form:                 

               "This security has not been  registered  under the Securities Act
               of 1933, as amended (the "Securities Act"). The holder hereof, by
               purchasing  this  security,  agrees  for the  benefit  of Robotic
               Vision Systems, Inc. that this security may be resold, pledged or
               otherwise transferred only pursuant to an effective  registration
               statement  under the  Securities Act or exemption  therefrom,  in
               each case in accordance  with any applicable  securities  laws of
               any state of the United States. This security may be pledged, but
               not transferred in violation of the foregoing, in connection with
               a bona  fide  margin  account  or  other  loan  secured  by  such
securities."                                      

II. REPRESENTATION AND WARRANTIES BY THE COMPANY                                

The Company represents and warrants to the Subscriber as follows:     

     2.1 The Company is a corporation  duly organized,  validly  existing and in
good  standing  under the laws of the State of  Delaware.  The  Company  has the
corporate  power and authority to own,  lease and operate its  properties and to
conduct the business which it presently conducts.  The Company is duly qualified
as a foreign  corporation  to transact  business and is in good standing in each
jurisdiction  in  which  such   qualification  is  required,   except  for  such
jurisdictions where the failure to be so qualified or in good standing would not
have a material adverse effect on the condition,  financial or otherwise,  or on
the  results of  operations,  business  affairs  or  business  prospects  of the
Company.                                                                        

     2.2 The  execution,  delivery  and  performance  of this  Agreement  by the
Company (a) has been duly  authorized  and approved by the Board of Directors of
the Company and all other necessary  corporate action on the part of the Company
in  connection  therewith  has been  taken  and (b) will  not  conflict  with or
constitute  a breach  of,  or  default  under,  or  result  in the  creation  or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company  pursuant to (i) the charter  documents or by-laws of the Company,  (ii)
any material contract, indenture, mortgage, loan agreement, note, lease or other
agreement  or  instrument  to which the Company is a party or by which it may be
bound  or to which  any of its  properties  may                                 

EX-9
3rd Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 3rd
be  subject  or  (iii)  any  law,  administrative  regulation  or  court  decree
applicable  to or binding upon the  Company.  This  Agreement  has been duly and
validly  executed and delivered by the Company and constitutes the legal,  valid
and binding agreement of the Company,  enforceable in accordance with its terms,
except  that (i) any  enforcement  may be  subject  to  bankruptcy,  insolvency,
reorganization,  moratorium  or  similar  laws from  time to time in effect  and
affecting  the rights of  creditors  generally  and (ii) the remedy of  specific
performance and injunctive and other forms of equitable relief may be subject to
equitable  defenses  and to  the  discretion  of  the  court  before  which  any
proceedings therefor may be brought.                                            

     2.3  The  Shares  shall,   upon  the   consummation  of  the   transactions
contemplated hereby and the payment of the purchase price therefore, be duly and
validly authorized and issued,  fully paid and non-assessable and not subject to
any  preemptive  rights.  On or before the Closing date,  the Company shall have
reserved from its duly authorized  capital stock the maximum number of shares of
Common Stock necessary in order to issue the Shares and the Additional Shares.  

     2.4 The Disclosure Documents are true, correct and complete in all material
respects,  and do not contain an untrue  statement  of material  fact or omit to
state a material  fact  required to be stated  therein or  necessary to make the
statements  therein,  in the light of the  circumstances  under  which they were
made, not misleading.                                                           

     2.5 Since the  respective  dates as of which  information  was given in the
Disclosure Documents,  except as otherwise stated therein: (i) there has been no
material  adverse  change  in the  financial  condition,  or in the  results  of
operations,  affairs or prospects of the Company,  whether or not arising in the
ordinary course of business;  and (ii) there have been no  transactions  entered
into by the Company, other than those in the ordinary course of business,  which
are material to the Company.                                                    

     2.6 The Company is not, and is not an affiliate of, an "investment company"
within the  meaning of the  Investment  Company  Act of 1940,  as  amended.  The
Company confirms that neither it, nor to its knowledge,  any other person acting
on its behalf has provided the Subscriber with any information  that the Company
believes  constitutes  material,   non-public   information,   except  for  such
information  as will be included  within the press release  described in Section
2.7 hereof.  The Company  understands and confirms that the Subscriber will rely
on the  foregoing  representations  and covenants in effecting  transactions  in
securities of the Company.                                                      

     2.7 By 8:30 a.m.  (New York City time) on the first  business day following
the Closing Date, the Company shall issue a press release reasonably  acceptable
to the Subscriber  disclosing the  transactions  contemplated  hereby and file a
Current Report on Form 8-K  disclosing  the material  terms of the  transactions
contemplated  hereby. In addition,  the Company will make such other filings and
notices in the manner and time required by the SEC.                             

III. REGISTRATION RIGHTS                                                        

     3.1 The Company shall include the Shares and the  Additional  Shares in the
next registration statement on Form S-1 or Form S-3 (or other similar form) that
the Company files with the SEC (the "Registration  Statement"),  so as to permit
the  resale  of  the  Shares  and  the  Additional   Shares   (collectively  the
"Registrable  Securities")  in  compliance  with federal  securities  laws.  The
Company  covenants  and  agrees  that it shall use its best  efforts to file the

EX-9
4th Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 4th
Registration  Statement  promptly  after  the  Closing  Date  and to  cause  the
Registration  Statement  to become  effective  within 120 days after the Closing
Date. The Company shall use its best efforts to keep the Registration  Statement
continuously  effective  for the  period  beginning  on the  date on  which  the
Registration  Statement is declared effective and ending on the date that all of
the  Registrable  Securities  have been sold or are eligible for resale  without
registration pursuant to Rule 144 under the Act.                                

     3.2  Certificates  evidencing  the Shares and  Additional  Shares shall not
contain  any  legend  (including  the  legend  set forth in  Section  1.5):  (i)
following any sale of such shares  pursuant to the  Registration  Statement,  or
(ii) following any sale of such shares pursuant to Rule 144, or (iii) while such
shares are eligible  for sale under Rule  144(k),  or (iv) if such legend is not
required under applicable  requirements of the Securities Act. The Company shall
cause its  counsel to issue any legal  opinion or  instruction  required  by the
Company's  transfer  agent to  comply  with the  requirements  set forth in this
Section.  At such time as a legend  is no longer  required  for the  Shares  and
Additional  Shares  under  this  Section  3.2,  the  Company  will,  as  soon as
reasonably  practicable  following the delivery by the Subscriber to the Company
or  the  Company's  transfer  agent  of a  certificate  representing  Shares  or
Additional  Shares  containing  a  restrictive  legend,  deliver  or cause to be
delivered to the Subscriber a certificate representing such Shares or Additional
Shares that is free from all restrictive and other legends.                     

IV. MISCELLANEOUS                                                               

     4.1 Any  notice,  request,  advice,  consent or other  communication  given
hereunder  shall be given in writing and sent by overnight  delivery  service or
registered  or  certified  mail,  return  receipt  requested,  and  addressed as
follows: if to the Company,  to it at 486 Amherst Street,  Nashua, New Hampshire
03063,  Attention:  President;  and if to the  Subscriber,  to it at its address
indicated  below its  signature  to this  Agreement.  Notices so given  shall be
deemed to have been  given on the  earlier  to occur of actual  receipt or three
business  days after the date of such  mailing,  except for notices of change of
address, which shall be deemed to have been given when received.                

     4.2 This  Agreement  shall not be changed,  modified or amended except by a
writing signed by the parties hereto.                                           

     4.3 This  Agreement  shall be binding  upon and inure to the benefit of the
parties hereto and to their respective heirs, legal representatives,  successors
and assigns.  This Agreement sets forth the entire  agreement and  understanding
between the parties as to the subject  matter  thereof and merges and supersedes
all prior  discussions,  agreements and  understandings  of any and every nature
among them.                                                                     

     4.4 This Agreement and its validity,  construction and performance shall be
governed in all respects by the laws of the State of New York.                  

EX-9
Last Page of 5
TOC
1st
Previous
Next
↓Bottom
Just 5th
4.5 This Agreement may be executed in counterparts.                   

     IN WITNESS WHEREOF,  the parties have executed this Agreement as of the day
and year first set forth above.                                                 

                                      ROBOTIC VISION SYSTEMS, INC.

                               By:  /s/ Pat V. Costa
                                                  ------------------------------
                                        Name:   Pat V. Costa
                                             Title:  President and CEO
ACCEPTED AND AGREED TO:                                                         

SF CAPITAL PARTNERS LTD.                                                        

By: /s/ Michael A. Roth                                                         
---------------------------                                             
Name:  Michael A. Roth                                            
Title: Authorized Signatory                                       

c/o Staro Asset Management, LLC                                                 
3600 South Lake Drive                                                           
St. Francis, Wisconsin  53235                                                   
-------------------------------                                                 
Address                                                                         

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘8-K’ Filing		Date		First		Last			Other Filings
Filed on / For Period End:		2/23/04
		2/20/04		1					4
		1/13/04		1					10-K,  4
		9/30/03		1					10-K,  8-K,  NT 10-K
									List all Filings